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Parkview Constructions Pty Ltd v Tayeh

Parkview Constructions Pty Ltd v Tayeh

Case [2009] NSWSC 186 24 March 2009

Voluntary Administration

Deed of Company Arrangement

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Reported Decision:
71 ACSR 65

New South Wales

Supreme Court

CITATION: Parkview Constructions Pty Ltd v Tayeh & Ors [2009] NSWSC 186

HEARING DATE(S): 06/03/09

JUDGMENT DATE :
24 March 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Leave to proceed granted under s 440D. Proceedings otherwise dismissed.

CATCHWORDS: CORPORATIONS - voluntary administration - deed of company arrangement - deed provides for creation of creditors' trust and execution of related implementation deed and charge - all such steps taken immediately after deed became binding - creditor applies for order under s 445D terminating deed of company arrangement - but deed already terminated by s 445C(c) upon completion of specified steps - no capacity to terminate again - reliance by plaintiff on s 447A in submissions in reply - claim for order terminating deed ab initio - whether new case can be mounted in submissions in reply - whether, in any event, s 447A order could have effect of terminating deed of company arrangement ab initio - where independently created rights and obligations have arisen from creditors' trust and related implementation deed and charge - comment on use of Part 5.3A to create scheme of administration outside Part 5.3A

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999, s 25
Corporations Act 2001 (Cth), Part 5.3A, ss 436A(1), 440D, 444G, 445C. 445D, 445H, 447A, 459G, 459J(1)(b), 553C
Supreme Court (Corporations) Rules 1999, rule 2.2

CATEGORY: Principal judgment

CASES CITED: Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270
Gye v McIntyre [1991] HCA 60; (1991) 171 CLR 609
Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; (2006) 229 ALR 566
Hughes; Re Croesus Mining NL [2007] FCA 498
Kyle House Pty Ltd v ACN 000 016 213 Pty Ltd [2007] NSWSC 224
MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636
Parkview Constructions Pty Ltd v Sydney Civil Excavation Pty Ltd [2009] NSWSC 61
Reed Constructions Australia Ltd v DM Fabrications Pty Ltd [2007] NSWSC 1190; (2005) 25 ACLC 1463
Veolia Water Solutions & Technologies (Australia) Pty Ltd v Kruger Engineering Australia Pty Ltd (No 3) [2007] NSWSC 459
Wellnora Pty Ltd v Fiorentino [2008] NSWSC 483; (2008) 66 ACSR 229

TEXTS CITED: Australian Securities and Investments Commission Regulatory Guide 82

PARTIES: Parkview Constructions Pty Limited - Plaintiff
Riad Tayeh and Antony de Vries - First Defendants
Sydney Civil Excavation Pty Limited - Second Defendant

FILE NUMBER(S): SC 1633/09

COUNSEL: Mr W G Muddle SC/Mr A R R Vincent - Plaintiff
Mr G P George - Defendants

SOLICITORS: Farrar Lawyers - Plaintiff
Pateman Legal - Defendants

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY, 24 MARCH 2009

1633/09 PARKVIEW CONSTRUCTIONS PTY LTD v RIAD TAYEH & ORS

JUDGMENT

The principal claim in the proceedings

1 The principal claim of the plaintiff, Parkview Constructions Pty Ltd (“Parkview”), is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parkview Constructions Pty Ltd v Tayeh

Details

AGLC: Parkview Constructions Pty Ltd v Tayeh [2009] NSWSC 186
Case: [2009] NSWSC 186
Decision Date: 24 March 2009

CaseChat Overview and Summary

The case of Parkview Constructions Pty Ltd v Tayeh involved the plaintiff, a creditor of Parkview Constructions, seeking an order under section 445D of the Corporations Act 2001 to terminate a deed of company arrangement (DOCA). The defendant, the administrator of Parkview Constructions, argued that the deed had already been terminated under section 445C(c) due to the completion of specified steps. The plaintiff subsequently sought to rely on section 447A in their submissions in reply, claiming that the deed should be terminated ab initio. The court was required to determine whether a new case could be mounted in submissions in reply and whether, in any event, an order under section 447A could have the effect of terminating the DOCA ab initio.

The court held that a new case could not be mounted in submissions in reply and that the plaintiff's reliance on section 447A was misplaced. The court found that the deed had already been terminated under section 445C(c) and that the plaintiff's claim for an order terminating the deed ab initio was not sustainable. The court further held that an order under section 447A could not have the effect of terminating the DOCA ab initio where independently created rights and obligations had arisen from the creditors' trust and related implementation deed and charge. The court also commented on the use of Part 5.3A to create a scheme of administration outside Part 5.3A, stating that such a scheme was not permissible.

The court dismissed the plaintiff's claim for an order terminating the DOCA ab initio. The court found that the plaintiff's reliance on section 447A was misplaced and that the deed had already been terminated under section 445C(c). The court held that an order under section 447A could not have the effect of terminating the DOCA ab initio where independently created rights and obligations had arisen from the creditors' trust and related implementation deed and charge. The court also commented on the use of Part 5.3A to create a scheme of administration outside Part 5.3A, stating that such a scheme was not permissible.

Orders